With Ambode’s Probe, There Are More Questions Than Answers
Akinwale Akintunde asks if the former governor of Lagos State, Mr. Akinwunmi Ambode contravened any provision of the constitution in his procurement of 820 High Occupancy Vehicles (HVOs) as alleged by the Lagos State House of Assembly
In the last 15 months, politics in Lagos State has witnessed some interesting moments, albeit not for progressive reasons. It all started with the succession politics mid- 2018 purely to stop the aspiration of the immediate past governor of the state, Mr. Akinwunmi Ambode to serve a second term. Amid sustained dissension in the rank of the state’s All Progressives Congress ( APC), Ambode eventually lost the return ticket.
However, the era of succession politics has long elapsed. Ambode has even left office since. But on August 27, the postelection politics took another dimension with a raid of Ambode’s Ikoyi and Epe residences by the Economic and Financial Crimes Commission (EFCC). This time, the Speaker of the State House of Assembly, Mr. Mudashiru Obasa constituted an adhoc committee to investigate the Ambode administration.
Obasa appointed Mr. Fatai Mojeed, a lawmaker from Ibeju-Lekki I State Constituency to head the investigative committee comprising 15 other lawmakers. As part of its mandate, the speaker asked the committee “to look into the procurement of 820 buses scheduled for the state’s public transport.” Aside, he also directed the committee “to probe Ambode’s Lightup Lagos and Imota Rice Mill projects, among others.”
With its inauguration, the committee swung into action with the invitation of the the Accountant- General of the state, Mrs. Shukrat Umar. Besides, the committee had questioned former commissioners who served in Ambode’s administration, especially former Commissioner for Budget and Economic Planning, Mr. Olusegun Banjo; his Energy and Mineral counterpart, Mr. Olawale Oluwo and Mr. Toyin Suara, who served as the Commissioner for Agriculture. Was Ambode Indicted? For about five weeks, the ad- hoc committee had been investigating Ambode’s administration without much public knowledge. But the inquiry took another dimension on October 7 with different reports indicating that former commissioners indicted Ambode before the ad-hoc committee, which had stoked claims and counter claims from different quarters.
On October 7, precisely, two issues were under consideration for the investigative committee. The first issue dwelled on an allegation that Ambode’s administration procured the 820 vehicles with the state’s share of Paris Club refund without the approval of the State House of Assembly. The second issue focused on another contention that the procurement was done without budgetary approval.
During the proceedings, Banjo reportedly, testified that Ambode sidelined the State Ministry of Budget and Economic Planning in the controversial procurement of 820 mass transit buses for N45 billion. Aside, the former commissioner claimed that his principal shunned the procurement tradition which the state had laid down over the years and did not carry his ministry along with respect to the purchase of the mass transit buses.
Subsequently, the reports from the proceedings elicited grievous public reactions, perhaps for two reasons. First, at the same proceedings, the state’s Accountant-General gave contrary testimony, attesting that the State Executive Council ( SEC) approved the procurement of the mass transit buses. Second, the Accountant-General also testified that the State Treasury Office ( STO) acted on the approval of the SEC before the fund was released.
Perhaps, due to the Accountant-General’s testimony, Banjo disputed reports at the proceedings of October 7 on two related grounds. In the first instance, Banjo claimed he told the probe panel that the issue of the bus procurement had been under fiscal consideration before he joined the SEC in February 2018. Also, he claimed he told the committee that the bus procurement was
not part of the fiscal regime he managed between February 2018 and May 2019.
Likewise, Oluwo disowned the reports that he indicted Ambode at the investigative proceedings with respect to the budgetary allocation for N1.63 billion LED- UK streetlight project. He equally claimed that he testified before the committee alongside Suara, his colleague, who served in Ambode’s cabinet as the Commissioner for Agriculture.
Contrary to reports, Oluwo said, “For the avoidance of doubt, I reiterate that I did not and could never have indicted Akinwunmi Ambode. I am a committed democrat, a loyal team player and a strong believer in the principle of collective responsibility.” How then did Ambode’s indictment come about? This is one probing question that neither the assembly nor its committee has responded to since the raging controversies.
Approval Questions
As shown in its mandate, the committee has the onus to determine whether the Ambode administration arbitrarily spent two tranches of Paris Club refunds it received from the Federal Government first in December 2016 and second in September 2017. Besides, the probe panel has the mandate of the assembly to find out whether the administration spent public funds without the approval of the State House.
But in the state’s 2017 fiscal regime, Ambode’s administration approached the assembly for budget reordering. Under the proposal, it sought legislative approval for N17 billion Paris Club refund allocated for the purpose of the bus procurement. The assembly approved the re-ordering proposal. However, it excluded the provision for the state’s Bus Reform Initiative. Consequently, the request for budget reorder became inconclusive.
With the exclusion of the bus procurement, a critical element of the Bus Reform Initiative, the administration could not implement the re-ordered budget. Rather, it claimed it saved the fund in an interestyielding account, which according to some documents in possession of THISDAY, generated over N1 billion additional income for the state government.
In December 2017, the administration proposed N24 billion for the Bus Reform Initiative. At an executive- legislative parley also in December 2017, the two arms discussed the proposal extensively and agreed on terms for including the Bus Reform Initiative in the 2018 appropriation bill. With the executive- legislative consensus, the assembly eventually approved N24 billion for the procurement of the Bus Reform Initiative under the 2018 appropriation law, which had a total budget value of N1.046 trillion, the state’s biggest fiscal plan in history.
Apart from the N24 billion it approved for the Bus Reform Initiative, the assembly equally approved N6 billion for Imota Rice Mill with a production capacity of 32,000 tonnes per hour; N9.722 billion for Oshodi Transport Exchange; N1.63 billion for LED- UK streetlight projects and N12.67 billion for Adiyan Water Project (new Water Works).
Under the appropriation regime, among others, the assembly appropriated N2 billion for Eko Project Implementation, N500 million for rice collaboration between
Lagos and Kebbi, N2 billion for regional roads, N8.56 billion for waste management sinking fund, N10 billion for embedded power (SBLC) commitment, N14.592 billion for smart-city project and N10 billion for embedded power (upgrade of distribution infrastructure).
All these projects were appropriated for and approved under the state’s 2018 appropriation regime. Under Schedule 1 – Part C, however, the assembly inserted a provision, which required the executive arm to seek its subsequent approval or clearance for all capital expenditures above N200 million after the enactment of the appropriation law.
Under the schedule, the assembly classified all capital expenditures above N200 million as special expenditure requiring clearance before the projects can be executed, a provision the administration claimed, violated the power of the executive arm to spend and execute projects appropriated for without legislative interference under the 1999 constitution.
Constitutional Requirements
This controversial clause, which the assembly inserted in the 2018 appropriation law, has been the bone of contention in the ongoing investigation. But the assembly has not kept it out of public knowledge. Obviously, the clause has raised some questions about the power of the State House of Assembly under the 1999 Constitution? Does the executive need subsequent legislative approval for projects above N200 million after the enactment of the appropriation law?
For some commissioners, who served in Ambode’s four-year government, the decision of the assembly to insert the controversial provision violated the power and control over public funds clause under the 1999 Constitution. But the assembly largely differed, insisting that it retained the power to control how public funds are disbursed and spent as guaranteed under the same constitution.
Obviously, sections 120- 129 outline requirements for the power and control over public funds. Under the sections, the legislature is empowered to grant approval for every public spending while the executive retains the power to spend public funds in line with the approval of the legislature. None of these sections makes provisions for subsequent legislative approval once the appropriation law has been enacted.
Specifically, section 121 of the 1999 Constitution states that the governor “shall cause to be prepared and laid before the House of Assembly at any time before the commencement of each financial year estimates of the revenues and expenditure of the state for the next following financial year.
“The heads of the expenditure contained in the estimates, other than expenditure charged upon the Consolidated Revenue Fund of the state by this Constitution, shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the State of the sums necessary to meet that expenditure and the appropriation of those sums for the purpose specified therein.”
Any Constitutional Breach?
Under the 2019 regime, of course, the assembly questioned Ambode’s decision to spend public funds without appropriation. Between January and February 2019, this question generated protracted executive- legislative hostility, which the APC National Leader, Senator Bola Tinubu ended after meeting all the parties at Lagos House, Marina. Consequently, the lawmakers considered initiating impeachment proceedings against Ambode. But the possibility of losing governorship elections compelled the political leaders to shelve the impeachment option.
However, Ambode’s commissioners, who spoke privately with THISDAY, defended the decision of the administration before the enactment of the 2019 appropriation law on the point of law. One of them claimed that the assembly, which has the power of appropriation, simply wanted “to usurp the power of release of funds from the executive by inserting a clause requesting the executive to revert to the House for approval before certain expenditures/ votes can be released.
“This was considered as illegal and at variance with the provisions of the 1999 Constitution of the Federal Republic of Nigeria. Between May 2018 and May 2019, funds already appropriated were released for the procurement of the 820 buses. Before the last administration ended on May 28, the assembly did not transmit the appropriation bill to Ambode after it was passed.”
Another former commissioner acknowledged that the 1999 constitution empowered the executive “to make expenditure up to 50 percent of 2018 budget till June 2019. With this provision, the administration did not breach any provision of the constitution. Consequently, all expenditures for buses in 2019 were covered under this provision of the constitution.”
Under the authorisation of expenditure in default of appropriations clause, the 1999 constitution defines the power of the incumbent governor to allocate funds from the Consolidated Revenue Fund meet expenditure of the state while the appropriation bill is awaiting the approval of the State House of Assembly. It also set the limit to what the executive can spend before the fiscal regime legally comes into force.
Evident in section 122, the constitution stipulates, “If the Appropriation Bill in respect of any financial year has not been passed into law by the beginning of the financial year, the Governor may authorise the withdrawal of moneys from the Consolidated Revenue Fund of the State for the purpose of meeting expenditure necessary to carry on the service of the government for a period of not exceeding six months or until the coming into the operation of the law, whichever is the earlier.
“Provided that the withdrawal in respect of any such period shall not exceed amount authorised to be withdrawn from the Consolidated Revenue Fund of the state under the provisions of the appropriation law passed by the House of Assembly for the corresponding period in the immediately preceding financial year, being an amount proportionate to the total amount so authorised for the immediately preceding financial year.”
Probe without End
At this critical time, is Ambode’s investigation really necessary? No doubt, the assembly retains the power to investigate him. However, Ambode might need to approach the judiciary to answer this question. Perhaps, resort to the judiciary might be an option for Ambode if the assembly eventually decides to issue a warrant of arrest on him or if the probe takes another dimension that may have grave implication for his political future.
In Lagos, apparently, Ambode is not the first governor to face legislative investigation. He will not likely be the last governor that will face legislative scrutiny. Between 2009 and 2011, Ambode’s immediate predecessor, Mr. Babatunde Fashola (SAN) faced legislative scrutiny as a sitting governor. Then under the speakership of Mr. Adeyemi Ikuforiji, the State House of Assembly probed and initiated impeachment proceedings against Fashola. But Fashola sought relief from the judiciary before a political solution was eventually brokered.
In Ekiti too, the State House of Assembly investigated Dr. Kayode Fayemi after he completed his first term. Between 2014 and 2018, the administration of former Governor Ayodele Fayose trumped up allegations of mismanagement and misappropriation against Fayemi, perhaps as a strategy to stop him from seeking political office in the state. The Ekiti’ assembly finally indicted Fayemi, and he was banned from seeking political offices for 10 years.
However, the battle shifted from the legislature to the judiciary when Fayemi challenged the decision of Judicial Commission of Inquiry the Fayose administration before the court of competent jurisdiction. At last, the legislative decision against Fayemi did not stand the test of the law. The court of competent jurisdiction absolved Fayemi of any offence or wrong- doing.
In Fashola’s case, stakeholders politically resolved the then executive- legislative impasse. Among others, two leaders of Justice Forum, late Oba Olatunji Hamzat and Otunba Bushura Alebiosu brokered the political accord. Unlike Ambode’s case, their intervention saved Fashola from facing the impeachment proceedings, the Ikuforiji assembly had already initiated based on the allegation of a faceless political group christened the True Face of Lagos. Also, their intervention secured him a second term.
In Ambode’s case, legislative investigation will probably end nowhere. Already, the assembly has resolved to invite Ambode through public notice that would be placed in select national media. Apparently, Ambode’s legal team has started weighing options of litigation provided the assembly makes good its threat to issue warrant of arrest on him.
At this point, political solution may not be unlikely. However, it may not be an option for Ambode for two reasons. First, previous political solution has not offered Ambode much respite despite his decision to concede defeat after the flawed governorship primaries on October 2, 2018. Second, even if there is any political consideration in sight, Ambode may find it difficult to trust the present crop of APC leaders in the state considering what he has suffered in their hands in the last two years. With these considerations, there may not be an end in sight to the investigation.